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Suttle v. City of St. Paul7/31/2001
After obtaining a default judgment against the owner of a dog that bit her daughter, appellant brought this action against the county, the city, two city employees, the previous insurer of the dog owner, and the insurer's employee. The county, city, and city employees were granted summary judgment on the grounds that none of their acts was a proximate cause of the injury ; the insurer and its employee were granted summary judgment on the grounds that there was no policy in effect when the injury occurred. Because we see no genuine issue of material fact and no error of law, we affirm.
FACTS
On December 9, 1997, in St. Paul, the minor daughter of appellant Vanyell Suttle was bitten by a dog belonging to Robert McClenton. Previously, the dog had bitten two other children, was declared "dangerous" and was seized by Animal Control. McClenton requested a dangerous dog hearing. He was informed that he had to comply with theeight conditions set out in the St. Paul Code before the dog could be returned to him.
Among these conditions was that McClenton provide and show proof annually of his maintaining public liability insurance of at least $300,000. On September 29, 1997, McClenton telephoned respondent Misgen, an agent for respondent American National Insurance Co. (ANI), and asked the price of renter's insurance for a year. McClenton did not mention that he owned a dog. Misgen quoted him a price of $108. Later that day, McClenton obtained the money and appeared at Misgen's office. He told Misgen that he owned a dog and that the dog had bitten someone, but did not say that the dog was impounded or that he needed proof of insurance to recover possession of the dog. McClenton was given a "binder," which he delivered to a city employee as proof of insurance. The document was accepted, and his dog was returned.
After McClenton left the office, Misgen decided that the risk with the dog on the premises was "unacceptably high" and notified ANI that it should cancel the policy. ANI investigated and decided to cancel. On October 15, 1997, ANI sent McClenton notice that the policy would be terminated on November 18, 1997, and a check for $94.63, the pro rata portion of the premium. McClenton knew that his policy had been cancelled and tried to obtain insurance from three other companies, but was unsuccessful. The following December 9th, the dog bit appellant's daughter in the leg.
Appellant obtained a default judgment against McClenton in the amount of $42,304. She then sued respondents City of St. Paul (City), Ramsey County (County), Gary Pechmann and Robert Kessler (City employees), ANI and Michael Misgen, an ANI insurance agent. Against ANI and Misgen, she sought a declaratory judgment that the policy was in effect as a matter of law on December 9, 1997. In the alternative, she alleged negligence in releasing a dangerous animal to an uninsured owner on the part of County, City, Robert Kessler, director of City's Office of License, Inspections and Environmental Protection (LIEP) division, and Gary Pechmann, supervisor of the city employee who had signed off on McClenton's proof of insurance. Respondents moved for summary judgment; appellant moved to amend the pleadings and for a declaratory judgment that the policy was in effect on the date of the injury .
After a hearing, the claims against City were continued so appellant could depose two witnesses. Thereafter, all respondents were granted summary judgment. Appellant now challenges those judgments, contending that the policy was in effect, that genuine issues of material fact preclude summary judgment, that she had a prima facie negligence claim against County, City, and City's employees, and th
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